Battling cancer and insurance firm

HEALTH CARE INDUSTRIES

Allen L. and Barbara Hardester have engaged in dual battles against their insurance company, on the one hand, and Mrs. Hardester's cancer, on the other, since 1992. Frustration is their biggest hurt, but not by far their only one.

Their company, Lincoln National Life Insurance Co., refused to pay Mrs. Hardester's medical bills. With $35,000 in unpaid debts that health care providers sent to collection agents, the Columbia couple's credit rating has been ruined.

At issue was whether breast cancer qualified as a pre-existing condition when the couple signed up for medical coverage through Mr. Hardester's employer on May 1, 1992.

In 1981, Mrs. Hardester had been diagnosed with a fibrocystic breast condition. This condition is common in women beginning in their 30s and consists largely of benign cysts and masses of fibrous tissue that form in the breast.

Eleven years later, a month before Mrs. Hardester signed up for the insurance plan, her doctor noted a particular "ropy" mass in her left breast and diagnosed it as fibrocystic. The doctor also re

ferred Mrs. Hardester for a mammogram, which proved negative, and a biopsy, which on June 3 -- a month after Mrs. Hardester had signed up for the insurance -- turned up cancerous tissue.

Doctors testified that fibrous tissue does not necessarily result in or cause cancer. Indeed, her doctor thought the chance was very slim and scheduled routine tests weeks later. Had she thought Mrs. Hardester had cancer, the doctor said, she would have scheduled the test right away.

Lincoln National argued that Mrs. Hardester had received medical treatment for a mass in which the cancerous and fibrocystic conditions were present; therefore the cancer was a pre-existing condition. The company refused to pay her chemotherapy, surgery and other bills.

A federal judge saw the situation differently. Earlier this month, U.S. District Judge J. Frederick Motz issued a summary judgment against the Fort Wayne, Ind., company and directed it to pay the bills.

In his ruling, Judge Motz said the two conditions were coincidental. While the cancer existed before Mrs. Hardester signed up, she had never been treated for it.

He noted the purpose of pre-existing condition clauses -- to protect insurers from people who sign up for coverage when they discover they have a serious medical condition. Other courts have ruled that for the exclusion to apply, the patient must have been treated for the condition before signing up for a policy.

It's the first time a federal judge in Maryland has defined a pre-existing condition.

But it's hardly the first time a Marylander wanted to fight a decision by an insurance company to deny coverage. If the person can't afford legal help, "they have no choice but to ignore the unpaid bills or file for bankruptcy," said David A. Titman, an Ellicott City lawyer. The debt gets written off by hospitals, who raise their prices to make up for it.

After consulting with several well-known firms that wanted $10,000 up front, the Hardesters found Mr. Titman, a sole practitioner who took the case because, he said, it made him mad. The Hardesters are paying only court costs and, if they win, will seek legal fees from Lincoln National.

Lincoln National has appealed the case to the 4th Circuit Court of Appeals in Richmond, Va.